On January 6, 2020, the next phase of the regulations controlling the creation and participation requirements for the FMCSA Drug and Alcohol Clearinghouse will go into effect. These regulations will impose new requirements on different players in the transportation industry, with specific actions required by employers, drivers, medical review officers, substance abuse professionals, and third-party drug and alcohol test administrators. Below, we answer some of the most common questions Taylor & Associates has received from motor carriers about the Clearinghouse.

What is the Drug and Alcohol Clearinghouse?

The Clearinghouse, as detailed in 49 CFR § 382.701 et seq ., is a searchable, online database that houses up to the minute information concerning the drug and alcohol violations of Commercial Driver’s License (CDL) and Commercial Learner’s Permit (CLP) holders. This database allows employers, FMCSA officials, and law enforcement personnel to search the records of individual drivers for existing violations and test refusals, as well as the status of required rehabilitation work.

Starting in January 2023, State licensing agencies will be required to query the database prior to completing certain commercial licensing transactions , such as issuance, renewal, transfer, and upgrade.

Who Must Register with the Drug and Alcohol Clearinghouse?

Employers who use the services of CDL or CLP holders, medical review officers, third-party drug and alcohol test administrators, and substance abuse professionals all must register with the Drug and Alcohol Clearinghouse. The registration process can be handled at https://clearinghouse.fmcsa.dot.gov/register .

While not technically required to register with the Clearinghouse, drivers must register with the Clearinghouse to access their own information and to allow employers to access certain records. If a current or prospective employer needs to conduct a full query on a driver, the driver must register to provide consent for such a query. Once registered, a driver will receive Clearinghouse notifications whenever changes are made to their existing record and will be able to view their own record at no cost. Should a driver believe that the Clearinghouse lists incorrect information, the driver may request its removal.

If a driver is not registered with the Clearinghouse, employers and other enforcement personnel can still enter a violation into that driver’s record under the driver’s CDL information. If a driver believes that information has been entered into their record in error, they may petition the FMCSA for its removal. Drivers will only be allowed to challenge the accuracy of the information as reported, not the substantive content of test results or refusals.

Which Violations Will Be Recorded in the Clearinghouse?

The Clearinghouse will have a record of all violations of the drug and alcohol provisions found in 49 CFR § 382, Subpart B, occurring on or after January 6, 2020, including positive test results and test refusals. It will also house information regarding the completion of any return-to-duty process and follow-up testing plans. Records of any violations will remain in a driver’s file for five years or until the driver completes all return-to-duty requirements. The Clearinghouse will not contain past records dated prior to January 6, 2020.

What Must Employers Do to be Compliant with the New Clearinghouse Rules?

What is the difference between limited and full query reports?

When hiring new CDL or CLP employees, Employers must run a limited query on the driver through the Clearinghouse. At this time, employers will also still need to request documentation from a new hire’s previous employer regarding drug and alcohol compliance in addition to obtaining the limited query results. Beginning in January of 2023, the employer will only need to consult the Clearinghouse. If there is a change to a driver’s record within thirty days of the initial limited query being conducted, the employer will receive a Clearinghouse notification that the record has been updated. At that point, the Employer must obtain additional consent from the driver to access the new information.

If an employer’s limited query on a driver indicates the necessity of a full query and report, the employer must make the full query within twenty-four hours of discovering that violation information exists in the driver’s record. If the employer does not request, and the driver does not consent to, a full report within twenty-four hours, the driver must cease all safety sensitive operations, including the operation of a commercial motor vehicle.

What is the annual requirement to query driver records?

Employers will also be required to perform a limited query on each CDL or CLP employee once a year throughout the term of their employment. The timing of this annual inquiry may be based upon hire date or a different date, so long as the employer queries each driver once in each twelve-month period.

What are the fees to use the Clearinghouse?

Employers will be charged a fee of $1.25 per each query for limited queries and full queries and reports. Query plans that offer discounts from the single-query fee for multiple queries are available for purchase, based on employer needs. There is no charge to register with the Clearinghouse.

How does an employer conduct large volume of driver record queries?

For employers that need to request a large volume of driver records, FMCSA has provided specific procedures to make batch requests. Employers should consult the requirements prior to making a batch query request.  FMCSA offers different Clearinghouse pricing models depending on the volume of queries expected annually.

What are the employer’s record retention requirements?

Upon request, an employer will be required to provide documentation of a driver’s consent to limited queries for a period of three years. Employers should also maintain records concerning driver’s drug and alcohol violations, test refusals, and any return-to-duty work completed prior to January 6, 2020. Starting on January 6, 2020, such records will be kept in the Clearinghouse, and individual employers will no longer have to maintain them on site.

Additionally, the Clearinghouse will store records concerning each limited or full query requested by the employer or a third-party administrator, as well as driver consent documentation concerning full queries and reports.

What are the employer’s obligations for reporting actual knowledge of drug or alcohol violations to the Clearinghouse?

As detailed in 49 CFR § 382.705(b)(5), employers are required to report actual knowledge of any drug or alcohol violation on the part of an employee, including information about witnesses to the violation, documentation and supporting evidence, and proof showing that the employee was provided with the same information concerning the violation. FMCSA has tutorials to help employers to report violations to the Clearinghouse.

What are the employer’s requirements to educate drivers about the Clearinghouse requirements?

Employers are also required to inform drivers regarding the Clearinghouse requirements and the violations for which Clearinghouse reports must be made. There is no specific form that this notification must take, but drivers must be informed about how queries will be conducted and how they can register for the Clearinghouse and access their reported information. FMCSA offers several informational brochures on their website, including Spanish language materials, located at https://clearinghouse.fmcsa.dot.gov/Learn , or contact transportation legal counsel for support.

Must Drivers Supply Consent to being Queried?

Employers must obtain driver consent for the initial new hire and annual limited queries. If a driver refuses to provide consent to their employer, they may still work, just not in any safety sensitive position. Additionally, if a limited query indicates that violation information exists about the driver, the driver will have to grant consent, through a link sent by the Clearinghouse, for the employer to obtain a full driver report.

For limited queries, a generalized consent form will suffice and a single grant of consent may be used for several years, so long as the form itself discloses that it is a grant of multi-year consent. Each employer may design and implement their own consent form, although the FMCSA does provide guidance on creating a consent form that can be found at:   https://clearinghouse.fmcsa.dot.gov/Resource/Index/Sample-Limited-Consent-Form Alternately, you can contact transportation legal counsel to request a consent form that meets your specific needs.

Employers will be required to provide evidence of drivers’ consent to initial and annual queries upon request, and should maintain consent records for at least three years.

Do Owner-Operators Have Specific Requirements Under the New Rules?

Any employer who employs themselves as a CDL driver is subject to the regulations governing both employers and drivers. Further, such individuals must work with a third-party drug and alcohol testing agency to comply with reporting requirements pursuant to 49 CFR § 382.705(b)(6).

What are the Penalties for Failure to Comply?

Knowingly submitting inaccurate information to the Clearinghouse may subject a user to civil or criminal penalties.

Participation with the query and reporting requirements is the only way that an employer will be deemed to be in compliance with FMCSA drug and alcohol regulations. Failure to comply with such requirements can lead to fines or a revocation of authority to operate.